Citation Nr: 9916683
Decision Date: 06/17/99 Archive Date: 06/21/99
DOCKET NO. 96-28 436 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUES
Entitlement to service connection for post traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. L. Wight, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1958 to July
1962.
This cases comes before the Board of Veterans' Appeals
(Board) by means of an October 1995 rating decision rendered
by the Nashville, Tennessee, Regional Office (RO) of the
Department of Veterans Affairs (VA) wherein service
connection for PTSD was denied. The veteran appeals this
decision.
In April 1999, the veteran was furnished with a deferred
rating decision which denied entitlement to a pension as
there is no evidence of wartime service. The Board points
out that no appeal on this issue has been perfected;
therefore, that particular issue is not properly before the
Board. Additionally, the Board notes service connection for
hearing loss, tinnitus, and a skin condition was denied in
the May 1995 rating action. The veteran filed a timely
substantive appeal on the claim for a skin condition in June
1996 and the hearing loss and tinnitus claims in July 1996.
In a written statement in December 1998, the veteran withdrew
these three claims. Therefore, these issues are not before
the Board 38 C.F.R. § 20.204 (1998).
REMAND
Upon reviewing Zarycki v. Brown, 6 Vet.App. 91 (1993), and
West v. Brown, 7 Vet. App. 70 (1994), the question of the
existence of an event claimed as a recognizable stressor must
be resolved by adjudicatory personnel. If the adjudicators
conclude that the record establishes the existence of such
event, then the case should be referred for a medical
examination to determine (1) the sufficiency of the stressor,
(2) whether the remaining elements required to support the
diagnosis of PTSD have been met, and (3) whether there is a
link between a currently diagnosed PTSD and a recognized
stressor or stressors in service. 38 C.F.R. § 3.304(f).
In such a referral, the adjudicators should specify to the
examiner precisely what events claimed as stressors are
established by the record, and the medical examiner must be
instructed that only those events may be considered in
determining whether the appellant was exposed to a stressor
for the purposes of service connection. In other words, if
the adjudicators determine that the existence of any
inservice events claimed as stressors is not established by
the record, a medical examination to determine whether PTSD
due to service is present would be pointless. Likewise, if
the examiner renders a diagnosis of PTSD that is not clearly
based upon stressors whose existence the adjudicators have
accepted, the examination would be inadequate for rating
purposes.
In reviewing the claims file, the Board notes that in June
1995 the RO asked the appellant to provide information
regarding all stressors to which he was exposed while in
Vietnam. Although the appellant did not timely responded this
request, he has related other stressors at various times
including, inter alia, a handwritten statement received in
June 1995. He claims to have has served onboard the U.S.S.
Mauna Kea (AE-22) from at sometime between November 1961 and
February 1962. During this time, he states members of his
crew had turned a water hose on Vietnamese civilians sinking
their boat. However, his service personnel file (201 file)
is not associated with the claims file, and review of the
record does not show that the U.S. Armed Services Center for
the Research of Unit Records (USASCRUR)) has been requested
to verify the stressful event reported by the veteran.
In light of the foregoing, and recognizing VA's duty to
assist the veteran in the development of facts pertinent to
his claim under the provisions of 38 U.S.C.A. § 5107(a) and
38 C.F.R. § 3.103(a), the Board believes that additional
evidence must be obtained in order to determine if the
appellant has PTSD that can be linked to traumatic events to
which he claims he was exposed during military service.
Therefore, the claim must be remanded for the following
actions:
1. The appellant's service personnel file
(201 file) should be obtained and
associated with his claims file.
2. The RO should review the veteran's
file and prepare a summary of all events
which the veteran has claimed to be
stressors. This summary, and all
associated documents should be forwarded
to the U.S. Armed Services Center for
Research of Unit Records (USASCRUR),,
7798 Cissna Road, Springfield, Virginia
22150. The RO should request that they
provide any information which might
corroborate the veteran's alleged
stressors, including reference to the
vessel's deck logs.
3. Following the above, the RO must make
a specific determination, based upon the
complete record, as to whether any of the
veteran's alleged stressors have been
objectively verified, and if so, what was
the nature of the alleged stressor which
has been established by the record to
have occurred. In making this finding,
the RO must specifically render a finding
as to whether the veteran "engaged in
combat with the enemy." If the RO
determines that the record establishes
the existence of any of the veteran's
alleged stressors, the RO must
specifically find what alleged stressors
have been established by the evidence of
record. In reaching this determination,
the RO should address any credibility
questions raised by the record.
4. If, and only if, the RO determines
that the record establishes the
occurrence of any of the veteran's
alleged stressors, the RO should schedule
the veteran for a VA psychiatric
examination by a psychiatrist who has not
previously examined him. The claims
folder and a copy of this remand should
be made available to and be reviewed by
the examiners prior to the examination.
All necessary psychological testing
should be conducted, and clinical
findings should be recorded in detail. A
complete rationale for all conclusions
reached should be recorded. The RO must
specify for the examiners what alleged
stressors it has determined have been
established by the record and the
examiners must be instructed that they
may consider only those verified
occurrences in determining whether the
veteran was exposed to a stressor in
service. Specifically the examiners
should provide the following information:
a) The examiners should provide a
complete multiaxial diagnosis,
pursuant to the criteria found in
the Diagnostic and Statistical
Manual of Mental Disorders, Fourth
Edition (DSM-IV), of the American
Psychiatric Association. The
multiaxial diagnosis should include
diagnoses of all mental disorders
currently present.
b) If a diagnosis of post-traumatic
stress disorder is deemed
appropriate, pursuant to the
criteria for post-traumatic stress
disorder found in DSM-IV, the
examiner must explain how the
claimed stressor "involved actual
or threatened death or serious
injury" or precisely how the
claimed stressor involved "a threat
to physical integrity."
5. The appellant should be advised of the
provisions set forth at 38 C.F.R. §
3.655(b) regarding failure to report for
scheduled VA examinations.
6. The RO should review the claims
folder and ensure that all of the
development action has been conducted and
completed in full. Specific attention is
directed to the examination reports. The
Court has held that, if the requested
examination does not include adequate
responses to the specific opinions
requested, the report must be returned
for corrective action. 38 C.F.R. § 4.2
(1996) ("if the [examination] report
does not contain sufficient detail, it is
incumbent upon the rating board to return
the report as inadequate for evaluation
purposes."). Green v. Derwinski, 1
Vet.App. 121, 124 (1991); Abernathy v.
Principi, 3 Vet.App. 461, 464 (1992);
Ardison v. Brown, 6 Vet.App. 405, 407
(1994).
7. Following completion of the
foregoing, the RO should review the
issues on appeal. If the decision
remains adverse to the veteran, he and
his representative should be furnished a
supplemental statement of the case, which
informs him of the relevant DSM-IV
provisions relating to post-traumatic
stress disorder, and afforded the
applicable period of time within which to
respond. Thereafter, subject to current
appellate procedures, the case should be
returned to the Board.
The Board wishes to thank the RO in advance for its
assistance in this matter and trusts that it will attend to
this development in a timely manner.
The purpose of this REMAND is to obtain additional evidence.
No inference should be drawn regarding the final disposition
of this claim.
MARK W. GREENSTREET
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).